Opinion
11-P-327
03-05-2012
JOHN CLARENCE, [FN1] SEX OFFENDER REGISTRY BOARD NO. 162802 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court judgment that affirmed a final classification decision by the Sex Offender Registry Board (SORB) requiring him to register as a level two sex offender. We affirm.
On January 3, 2007, the plaintiff pleaded guilty to one count of the Federal charge of possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B) (2006). There was no error in the hearing examiner's inferring from the plaintiff's Federal conviction that he 'knowingly possessed one or more books, magazines, periodicals, films, video tapes, or other matter which contained visual depiction of a minor engaging in sexually explicit conduct that had been mailed, transported in interstate or foreign commerce or had been transmitted through the use of a computer.' Whether the hearing examiner initially expressed an interest in receiving additional evidence regarding the conviction is ultimately beside the point.
The plaintiff separately had been charged with attempting to entice a child under sixteen, see 18 U.S.C. § 2422(b) (2006), but those charges were dismissed. As detailed in an affidavit from a Federal Bureau of Investigation (FBI) special agent, the attempted enticement charge was based on numerous electronic mail messages and text message communications between the plaintiff and the special agent, posing as a fourteen year old boy. There was no error in the hearing examiner's reliance on the affidavit, which had ample indicia of reliability. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638-639 (2011).
The fact that the affidavit did not get into facts underlying the pornography count to which the plaintiff pleaded guilty does not make the record internally inconsistent.
The hearing examiner relied to some extent on evidence that came from the testimony of the plaintiff's own witnesses (which, inter alia, corroborated the FBI affidavit). Before putting on his case, the plaintiff filed a motion for a directed verdict. He now argues that the denial of this motion was improper, and, making analogies to criminal case law, he argues that the sufficiency of the SORB's evidence requiring him to register as a level two sex offender must be measured based only on the case that the SORB attorney presented. We need not decide how far the criminal analogy applies, if at all, because we discern no error in the denial of the motion for a directed verdict.
We also discern no error in SORB's interpretation or application of Factor 2, regarding whether a sex offender has engaged in a 'continuing course of sexual misconduct involving separate incidents with either the same victim or others.' 803 Code Mass. Regs. § 1.40(2) (2004). SORB's classification decision is supported by substantial evidence, and it is not infected with any error of law. The judge therefore correctly affirmed SORB's decision.
The plaintiff now specifically argues that SORB could not rely on this factor absent expert testimony. Compare Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 784-786 (2006). He did not raise such an issue below, and the issue has therefore been waived. See Albert v. Municipal Ct. of the City of Boston, 388 Mass. 491, 493-494 (1983).
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Judgment affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),